Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal. Equip yourself and learn more about what human rights are and how they work.
In this course, we will introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. You will see when and how people can turn to the European Court of Human Rights to complain about human rights violations. You will learn how the Court tries to solve many of the difficult human rights dilemmas of today. We will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. And we will address the rights of migrants, refugees, and other vulnerable groups. And, of course, we will see whether it is possible to restrict rights and if so under what conditions. You will even encounter watchdogs and ice cream in this course. We invite you to follow us on a journey of discovery into the European Convention!

TT

Very insightful. The course is very well structured, and works through real examples to give a feel of the challenges and outcomes.

JQ

Jul 29, 2017

Filled StarFilled StarFilled StarFilled StarFilled Star

Interesting course and fun to see stated the rights we have in America stated as human rights for all open societies.

À partir de la leçon

General principles

When someone complains that his or her right to privacy or right to freedom of expression has been violated, the European Court of Human Rights has to assess whether that is truly the case. But how does it do this? In this part of the course, we will focus on the general principles and methods the Court uses in order to assess whether a State has violated the Convention. We will see how the Court approaches human rights cases and learn about the dilemmas it faces in this regard in the context of open societies.

Enseigné par

Antoine Buyse

Prof. dr.

Janneke Gerards

Prof. dr.

Paulien de Morree

dr.

Claire Loven

LL.M

Transcription

In many human rights cases, the European Court of Human Rights needs to examine the reasonableness of national measures, or national courts' decisions. For example, it may have to decide if it was reasonable to impose a penalty because of a certain publication, or whether a discrimination based on gender can be justified. In making such assessments, the court often finds itself in a difficult position. On the one hand, it needs to provide effective protection to human rights. So it should not too easily allow states to restrict these rights. On the other hand, it finds itself in a position of subsidiarity. It is up to the national authorities to provide for the primary protection of human rights within their own sovereign powers. In addition, national authorities may be much better place than the court is to estimate which measures are necessary and suitable to serve the general interest. Local authorities will often be better able to assess if there is a risk for a demonstration to run out of hand than it is for the courts. A national child protection boards can much better assess the need for child protection measures than the courts can. In addition to that, regulation of human rights often requires making difficult moral or socioeconomic choices. You can think of regulation of matters of abortion, or euthanasia, or of social security measures. States often do not like the European courts meddling with their choices in these fields. And the court tries hard to respect these sensitivities, but you can clearly see the quandary it finds itself in. Often it is far from easy to square the need to respect national choices and differences between countries with the need to provide for effective protection of human rights. Well, the court has found a solution to this quandary. By sometimes reviewing what states do more strictly and closely, and in other instances, leaving the states more leeway. Let me illustrate this by taking the example of a state that has chosen to prohibit low income groups from moving into certain neighborhoods. By doing so, it aims to provide for a rather more mixed population, and it hopes to achieve better social cohesion and lower crime rates. Importantly, such a policy restricts a convention rights, which is the right to choose one's own residence, as is protected by Article 2, of Protocol number 4 to the Convention. And that is something which is valued highly in an open society. The courts could approach this prohibition in different ways. On the one hand, it could choose to very strictly asses the reasonableness of the policy. So it could require the state to provide strong evidence that this really is an effective means to combat crime and achieve social cohesion. Also, this could oblige the states to show that there were no other means available that could also have been effective. This means a very heavy burden of proof on the state, and it makes it very difficult to show a justification. But a court also could take a different approach, and it could be much more lenient towards the state. For example, it could restrict itself to examining if the measure would not be manifestly inappropriate or clearly unreasonable. The burden of proof for the states then would be much lighter, and indeed, it would not be very difficult to show that the prohibition is justified. So the courts can use different levels of intensity of review, and it may leave more or less leeway to the states to make their own decisions. In the court's case law, this leeway is usually called the margin of appreciation. In some cases the margin will be narrow. This means that states do not have much room to make their choices. And the courts will very strictly review the justifications states put forwards as to why they have interfered with human rights. In other cases the margin will be much wider. Then the court will show much restraint in assessing a state's measures reasonableness and necessity. You may ask yourself, how then does the court define a scope of that margin of appreciation. Or, in other words, which factors determine whether the courts will show restraint and respect national choices, or whether it will be strict and mainly protect the human rights in the European Convention? I'll discuss the four most important factors in this respect. To start with, there is the so-called common grounds factor. On certain issues, there is hardly any consensus between European states. You can think of topics such as same sex marriage or abortion. If there is no such consensus, the courts will usually leave the issue to the states, and the margin of appreciation will be wide. But it also may be that a certain restriction is considered unacceptable in almost all European states. You can think of restrictions of the freedom of expression for journalists. The margin for restriction then will be narrow, and the court will take a close look at the case. The second factor is the so-called better placed argument. I already mentioned that the national authorities really may be in better position to decide on certain issues than the court is. This may often be the case when social economic, or morally sensitive issues are concerned. National legislative bodies such as parliaments, or national administrative bodies are generally better equipped to make decisions on these issues. Therefore, the courts will usually not be very critical and the margin of appreciation will be wide. But even when the national authorities are clearly better placed, there may be counter arguments. The courts will almost always grant only a narrow margin of appreciation, if the essence, or core, of one of the convention rights is effected. So the importance of the human rights concerned is the third factor determining the scope of the margin of appreciation. The importance of a right is usually determined by comparing what is at stake for the applicants to the core notions of the convention. The closer the connection, the more important is the right at hand and the more narrow will the margin be. So to give an example, the court will usually very strictly scrutinize restrictions of political speech, as that kind of speech is very important to democracy as a core value of the convention. And by contrast, there is much less of a connection to democracy where, for instance, bans on smoking ads are concerned. So although both examples concern the freedom of expression, in the last one, the margin of appreciation is much wider than it is in the first one. And finally as a fourth factor, the court has often mentioned that the more serious an interference is, the stricter its review will be. When there is a relatively minor interference with someone's private life, the margin for appreciation may be wider than if the restriction really goes to the very heart of that right. So these four factors determine the margin for appreciation for states and the intensity of the court's review. The advantages of such a doctrine are clear. It allows the courts to navigate between the need to respect diversity and the need to effectively protect human rights. It also allows it to do so based on a relatively clearly defined set of reasonable standards and factors. But the difficulty is that the relations between the four factors are not always very clear. The case may be that an important right is at stake, but there is little European consensus. Or the national authorities are clearly well placed to make an assessment, but the interference is very far reaching. This is not an easy and straightforward puzzle to solve. So you can see that the margin for appreciation really involves a kind of a graded scale, ranging from very intensive to very lenient review. The interplay between the different factors determines which place a concrete situation has on this scale, and which standards the courts will be using. In the end, the European Court of Human Rights often just balances the different factors to see which one is the most important. And in cases of a real lack of clarity, the courts sometimes simply chooses for the intermediate option. [SOUND]